P L D 2005 Peshawar 180 (PLP)

NASIR UL MULK, C.J.

Ghulam Khan s/o Hameed-ud-Din, resident of Zando Banda, Tehsil and District Nowshera, was convicted under section 9 of the Control of Narcotic Substances Act, 1997 by the Additional Sessions Judge, Nowshera, on 18-8-2004 and sentenced to three years' R.I., and a fine of Rs.50,000, in default of payment thereof, to further suffer six months' S.I. The convict has filed this criminal appeal against his conviction and sentence.

2. The F.I.R. in the case was recorded at Police Station Risalpur on the report of Mukhtiar Ali Khan, S.H.O. of the Police Station on 25-6-2002. He reported that on that, day he was present in Village Zando Banda along with police contingents when some respectable persons of the area informed him that Ghulam Khan was selling Charas. The S.H.O. thus proceeded and. caught hold of Ghulam Khan. He was searched and from a plastic bag held by him, 1500 grams of Charas was recovered along with some currency notes. 4 grams of Charas was separated and sent to the Forensic Science Laboratory. The accused was arrested and the case registered. The F.S.L. report is in the positive and has declared the contraband to be the Charas. On completion of investigation, the Investigating Officer submitted challan on 27-6-2002. The accused was charged. He pleaded not guilty. The prosecution led its evidence and produced two witnesses, Wasal Khan, P.W. marginal witness, and the Investigation Officer Mukhtiar Ali Khan, as P.W.2. The accused in his statement under section 342, Cr.P.C totally denied the incident. He however, did not testify on oath.

3. The learned counsel appearing for the appellant submitted that the entire prosecution case is concocted. That according to the P.W.1 marginal witness, the accused was at a distance of 5/10 paces from the police party when the S.H.O. received information about the appellant's involvement in the narcotics, whereas according to the P.W.2, he consumed 30/35 minutes to get the accused after receiving information. The learned counsel submitted that P.W.1 stated that the Charas recovered from the accused was in the shape of slabs but he did not know the number of slabs whereas the Investigation Officer did not remember whether the narcotics were in the shape of slabs. The learned counsel, therefore, submitted that the appellant cannot be held responsible for the entire narcotics allegedly seized when the sample was taken only from one slab.

4. The learned counsel representing the State argued that the narcotic was recovered from the physical possession of the appellant after respectable persons of the area informed the police about the appellant's involvement. The learned counsel further contended that the Investigating Officer had furnished an explanation for consuming time for the arrest of the appellant as he has to go around the village to arrest him. He next argued that the minor discrepancies should not affect the prosecution case as there was overwhelming evidence against the appellant.

5. The narcotic was recovered from the immediate possession of the appellant. It was the respectable persons of the area who had pointed out to the S.H.O. about the selling of narcotic by the appellant. The question of distance is not very relevant. No doubt P.W.1 had stated that at the time of receiving information, the accused was at a distance of 5/10 paces from the police party. The Investigating Officer, however, explained that he had to go around the village to be able to get the accused. The testimony of the marginal witness and the Investigating Officer is in consonant with the narration of the facts given in the F.I.R. The F.S.L. has certified that the sample sent to the Laboratory was of Charas.

6. There is, however, significant inconsistency between the statements of the two witnesses regarding the shape in which the narcotics were recovered. P.W.1, marginal witness, categorically stated that the Charas was in the shape of slabs. He however, did not know the number of slabs or their weight. The Investigating Officer did not remember the shape of the Charas recovered from the appellant. In view of the forgetfulness of the Investigating Officer, the only other evidence regarding the shape of the narcotic is that of the marginal witness. He, however, did not remember the number of slabs. Neither the number of slabs are known, nor their weight. It is not the prosecution case that samples were taken from each of the slabs. It appears that the sample was taken from only one slab and the weight of which is not known. In this view of the matter, the appellant's conviction can only be maintained for the sample that was consumed during the laboratory examination. That weighs 4 grams. The sentence of three years of imprisonment would, therefore, be excessive for possession of 4 grams of Charas. Thus the conviction of the appellant under section 9(c) C.N.S.A. is converted into section 9(a) C.N.S.A. and accordingly the sentence is reduced to imprisonment already undergone and the sentence of fine is set aside. The appeal is partially allowed and disposed of in the above terms. H.B.T./421/P Order accordingly. ***